According to the Forbes International Billionaire list, Oprah Winfrey is one of the richest women on earth. With an estimated value of £4.2 billion she’s the richest black person in the world and was once the only black billionaire. While most of the rest of us can’t claim to have such an expansive empire behind us, we do expect to be remunerated appropriately for our duties and, whatever our race or national origins we expect equal treatment at our place of work.
In the UK, the issue of equal pay is treated as a gender discrimination issue. Men and women have the right to be treated equally in terms of salary and employee benefits for like work, work rated as equivalent or work of equal value.
The Equal Pay Act 1970 provides three ways for a claimant to show that he is engaged on “like work”, “work rated as equivalent” under a job evaluation scheme or “work of equal value” as his comparator.
To succeed in a claim for like work, an employee must show he is doing largely the same work as his comparator. A court is unlikely to agree that the claimant is doing like work if there are clear distinctions, for example, different duties, more physical effort or greater responsibility; however, consideration will be given to any extra duties required in a comparator’s job description to decide whether or not they are being done.
To determine whether the work is equivalent, the claimant’s and comparator’s jobs must be rated the same under a job evaluation scheme carried out by the employer. The job evaluation scheme will measure the demands made on the two workers under headings such as effort, skill and decision making. The job evaluation scheme must be objective, analytical and free from discrimination.
Equal value claims are the most difficult to determine. Where there is no job evaluation scheme, the court has to determine whether the claimant’s and the comparator’s jobs are of equal value. The court will usually instruct an independent expert to do an evaluation of the two jobs.
Equal pay has been a political issue for 40 years. Considerable strides have been made, but there’s still some way to go. According to a report published by the Chartered Management Institute the average salary of male managers is £10,071 more than their female equivalents. The 2010 National Management Salary Survey, which reviewed 43,312 employees and managers, found that the remuneration of male staff members was as much as 24% greater than that of female employees at a senior level (Personnel Today, 2010).
The Sex Discrimination Act 1975 was introduced to offer protection to both women and men against discrimination in society and employment. It is unlawful to discriminate on grounds of sex. This extends to a pregnant woman who does not have to compare her situation to how a man would be treated if she has reasonable grounds to support that ‘but for’ her pregnancy, she would not have been treated less favourably by her employee, constituting sex discrimination. Not only women are affected by this form of discrimination in the workplace.
Recently two solicitors by Eversheds’ property division in Leeds faced redundancy. Mr de Belin and Ms Reinholz were scored against five redundancy criteria. One of the selection criteria, financial performance, included a score for “lock-up”. This measured the time it took them to finish work and receive payment from the client; more points were awarded where there was a quicker turnaround. Eversheds used a reference period of the 12 months to 31 July 2008 to calculate respective lock-up. The maximum score was 2 and Mr de Belin was awarded 0.5. During the chosen reference period, Ms Reinholz was on maternity leave. The company decided to award her a notional score of 2. Overall, Mr de Belin had 27 points and Ms Reinholz had 27.5. Mr de Belin was put at risk of redundancy in September 2008.
Mr de Belin raised issues of unfairness in the lockup scores during the consultation process. He pointed out that if Ms Reinholz had been measured in the period immediately before she went on maternity leave, she would have scored 0.5. Despite raising a grievance and an appeal, Eversheds did not find in his favour and Mr de Belin was dismissed as redundant. He lodged a claim for unfair dismissal and sex discrimination. Mr de Belin argued that by artificially inflating Ms Reinholz’s score by 1.5, Eversheds had treated him less favourably because of his sex – put another way, but for her maternity leave, Ms Reinholz would not have scored 2 and she, rather than he, would have been chosen for redundancy.
The Sex Discrimination Act 1975 says that it is not sex discrimination to give “special treatment” to women in connection with pregnancy or childbirth. One example of “special treatment” in UK law gives a woman on maternity leave priority, in a redundancy situation, in relation to suitable alternative vacancies.
The tribunal found that Mr de Belin had been discriminated against on grounds of his sex and also that he had been unfairly dismissed. The application of the lock-up criteria was unreasonable and also constituted less favourable treatment on grounds of sex.
Although Ms Reinholz was on maternity leave during the lock-up reference period used, Eversheds should have done more to ensure the two employees were fairly treated; for example, by avoiding using lock-up altogether or using a different reference period.
If you find yourself in such a situation, Russell HR Consulting provides expert knowledge in the practical application of employment law as well as providing employment law training and HR support services. For more information, visit our website at www.russellhrconsulting.co.uk or call a member of the team on 0845 644 8955.
Russell HR Consulting offers HR services to businesses nationwide, including Buckinghamshire (covering Aylesbury, High Wycombe, Milton Keynes, Bedford, Banbury, Northampton, Towcester and surrounding areas), Nottinghamshire (covering Chesterfield, Mansfield, Nottingham, Sheffield, Worksop and surrounding areas) and Hampshire (covering Aldershot, Basingstoke, Reading, Farnborough, Fareham, Portsmouth, Southampton and surrounding areas).